Moses v. Columbian Insurance , 6 Johns. 219 ( 1810 )

Van Ness, J.

delivered the opinion of the court. The question here is, not whether the moiety of the whole cargo on board the ship was lost; but whether there has ■ been a loss of a moiety of the property specifically insured by the plaintiffs, at any period of the voyage ?

“ In settling and distributing an average loss, it is proper to look to every thing on board; but where a moiety of any portion, specifically underwritten, has been lost, its owner may abandon, however small its proportion may be to the whole cargo.’7 (Vandenheuvel v. United Insurance Company, 1 Johns. Rep. 411.)

- This was an insurance, upon an adventure from New-fork to London; and if this has been frustrated, by any of the perils within the policy, the insured have a right to a£,an¿[on^ an¿i recover as for a total loss. ■ The contract between the parties is, that the’ whole of the article insured shall be delivered at the port of destination; . and it a moiety should be lost m the transportation, by a peril within the policy, the insurer is liable for a total loss.

■ The ■ plaintiffs calculated upon the delivery of the .subject insured, at a particular market; and though it is- true, that the insurer has nothing to do with •the state of the market, yet he is answerable, in case the goods are not delivered there, , either for a partial or total loss, according to circumstances. Here .has been a loss of more than a moiety of the property insured, by the perils of the sea, in the course of the voyage; and within 9 reasonable time after advice of . the loss, the insured abandoned, and they have done pothing to waive the abandonment since it was made..

Of the 300 barrels of flour insured, 123 were thrown overboard, and 30 barrels were so much damaged as to render a sale of them proper and necessary, on the arrival of the ship at Norfolk. Not more than 147 barrels, therefore, arrived at the port of delivery. The 30 barrels sold at Norfolk, were as much lost to- the plaintiffs, within the meaning and spirit of the contract, as though they had been cast into the sea. They were lost to them, for all the useful and intended objects of the shipment; inasmuch as they were not in a state fit to be carried to the market to which they were intended to be sent.

The argument, on the part of the defendants is, that the loss arising from the jettison, and the damaged flour sold at Norfolk, estimating the flour at prime cost, and crediting the money, arising from the sale of the 30 barrels of .damaged flour, amountéd to less than a moiety of the prime cost of the whole 300 barrels; and that, ■therefore, there was not such a loss as to authorize an abandonment.

This argument, at first view, appears plausible, but its fallacy is easily detected. The contract is not, that there shall be a delivery at London, of a part of the property insured, and so much money as will be equal to a moiety in value of the 300 barrels. The insurer undertook, that the whole of the article insured should arrive at the port of destination; and the insured have nothing-to do with the money for which the damaged goods were sold.

The sale became necessary by reason of an injury to the flour, for which the insurers are liable, and the proceeds of the sale, passed by the abandonment, to the insurers.

This being the only point insisted upon, on the argument, though several others were made, we are of opinion that the plaintiffs are entitled to judgment, as for a total loss: the amount to be ascertained according to the provisions of the case.

Judgment for the plaintiffs,